This page lists additional resources to continue your exploration of presidential elections.
Bruce Ackerman & David Fontana, Thomas Jefferson Counts Himself into the Presidency, 90 Va. L. Rev. 551 (2004) (The Constitution instructs the President of the Senate to open the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents.).
Nathan Colvin & Ned Foley, The Twelfth Amendment: A Constitutional Ticking Time Bomb, 64 U. Miami L. Rev. 475 (2010) (The potential for crisis comes from ambiguous constitutional text that has left modem interpreters with significant unanswered questions. There has been little legislative effort to address the problems with the text of the Twelfth Amendment, perhaps because our nation has not had a serious dispute over electoral votes reach the counting stage in Congress for over one hundred years.).
Ned Foley, Preparing for a Disputed Presidential Election: An Exercise is Election Risk Assessment and Management, 51 Loy. U. Chi. L.J. 309 (2019) (Congress could face a disputed presidential election triggered, not necessarily by foreign interference, but by the ballots counted after Election Night that cause the initial apparent winner to fall behind.).
Jason Harrow, Katherine Mateo, and Nicholas Dantzler, Supreme Court Draft Brief (This document is a hypothetical Supreme Court brief explaining why any attempt by Florida, or any other state, to appoint presidential electors directly, while essentially throwing out the popular vote, would violate federal law and the Constitution. The fact pattern presented is of course imagined, but it is our best guess about what might provoke such an extraordinary event. We welcome comments, improvements, and questions using the Google docs comment function. ).
Healthy Elections Project (The website presents information making elections more accessible for voters and election administrators.).
Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C.L. Rev. 1653, 1694 (2002) (This Article takes on one of the most unasked questions of Bush v. Gore – whether the Electoral Count Act, the federal statutory scheme at issue in that case, is constitutional.).
Lawrence Lessig, The Mess Congress Could Make, The Atlantic (Oct. 19, 2020) (The Bush v. Gore fight has become the template of a disputed election, but many of the worst-case scenarios could end up before Congress, not the Court.).
Michael Morley, Postponing Federal Elections Due to Election Emergencies (June 2020) (This Essay argues that federal Election Day laws, including their “failure to elect” provisions, empower states to postpone or extend federal elections when an unexpected emergency prevents them from conducting or concluding a federal election on Election Day.).
Michael Rosin, Can a State Legislature Give Itself the Power After Election Day to Appoint a Slate of Presidential Electors for Its State? (Oct. 2020) (Suggestions are swirling that some state legislatures might try to void a close popular vote in this year’s presidential election and after Election Day give themselves the power to appoint their state’s presidential electors or certify a slate of electors themselves. This Note analyzes the prospects for such action in eight swing states.).
Michael Rosin, Who Counts the Returns from the Presidential Electors and What Counts in the Denominator? Evidence From the First Century of the Union (Oct. 2020) (This Note reviews evidence from 1789 through 1873 and concludes that Congress and the Presidents of the Senate established a super precedent that Congress rather than the President of the Senate has the upper hand in the counting of the electoral votes and the number of electors appointed.).
Matthew Seligman, Disputed Presidential Elections and the Collapse of Constitutional Norms (Jan. 2019) (This Article provides a synoptic view of the legal and political issues that may arise from a disputed Presidential election in an age of widespread but inconclusively supported claims of voter fraud and election interference.).
Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541 (2004) (Electoral vote counting is the oldest activity of the national government and among the oldest questions of constitutional law. Yet, electoral vote counting remains one of the least understood aspects of our constitutional order.).